Will Undoing The Stream Protection Rule Really Help Coal?

A & G Coal Corporation surface mining operations are seen in the Appalachian Mountains on April 16, 2012 in Wise County, Virginia. Critics refer to this type of mining as 'mountaintop removal mining' which has destroyed 500 mountain peaks and at least 1,200 miles of streams while leading to increased flooding. (Photo by Mario Tama/Getty Images)

On Groundhog’s Day, lawmakers may have given the coal industry signs of an early spring. The U.S. Senate voted largely along party lines Thursday to roll back an Obama initiative that would have cut the levels of coal waste getting tossed into nearby streams — a measure that the House of Representatives also approved this week.

The so-called Stream Protection Rule is expected to be the first among several rules to get axed that were enacted in the waning days of the Obama administration. The Congressional Review Act gives lawmakers that right without the threat of a filibuster. While it has been rarely used till now, it is something that the Trump administration and the Republican Congress intend to employ to their full political advantage.

Among the biggest critics of the law has been Robert Murray, chief executive of the coal producer Murray Energy. He has called this measure the single most expensive regulation on the books and has sued to try and prevent it from becoming law, saying that it is “illegal and destructive.”

What exactly is the Stream Protection Rule and why take on this rule that had been finalized by the Obama administration on December 19?

When the Department of Interior issued the rule, it said that its intent had been to protect 6,000 miles of streams and 52,000 acres of American forest by creating a larger buffer zone between mines and waterways. The goal, it had maintained, is to protect drinking water in accordance with today’s technologies. And while the rule may have been formally adopted at the last minute, they noted, work on it had been ongoing for many years to clarify vague wording in the 1977 Surface Mining Control And Reclamation Act. In that legislation, Congress had enjoined miners to not wreak "material damage to the environment to the extent that it is technologically and economically feasible."

The new rule would have required companies to restore streams and to return mined areas to the uses they were capable of supporting prior to mining activities, and to also replant these areas with native trees and vegetation, the Interior Department had said. Companies would furthermore have to test and monitor the conditions of streams that might be affected by the mining activity.

It is really targeted at mountaintop removal sites, which shear off the tops of hillsides and where the debris is cast aside and often into nearby streams. The Energy Department says that production from this type of mining has fallen by 15% between 2008 and 2014.

“All Americans, from Alaska to Appalachia, deserve common sense protections for clean water, and that’s why we just can’t send our nation back in time and let the coal industry do whatever it likes,” says Earthjustice attorney Emma Cheuse.

The coal sector, though, has been calling the regulation hugely expensive a and a job killer, potentially costing thousands of them. The Obama administration has said that is a gross exaggeration and has noted that market forces are coal’s enemy, not regulations: cheap natural gas, overproduction and weaker Chinese demand for coal.

But for the first time in a while, the Republicans control both chambers of Congress and the White House. And they will take advantage of that through the Congressional Review Act that allows lawmakers to toss rules put in place at the tail end of President Obama's term.

Besides the Stream Protection Rule, they are also likely to go after a moratorium now in place on coal mined from federally-owned lands as well as the methane rules enacted by Obama in November. Opponents will also target the Obama team’s ban on oil and gas drilling off the shores of Alaska, as well as on the Atlantic Coast, which occurred in December.

As for the Stream Protection Rule, coal associations and sympathetic lawmakers say that it duplicates existing laws and specifically those of the Clean Water Act. “The combination of unnecessary government overreach, regulatory duplication and harm done through this rule meets every test for Congressional Review Action,” says Hal Quinn, chief executive of the National Mining Association.

Without a doubt, the Stream Protection Rule will get tossed — a clear regulatory victory for the ailing coal sector. And while the green movement may lament the turn of events, it could well use the experience to bolster its future causes.

Coal country officials have long lambasted the alleged “war on coal” and have emphasized that once such onerous rules are stricken, the industry can return to its heyday. This stream law is, according to the industry, one of the most severe it had faced.

But times and technologies have evolved over the decades and since coal fueled the country’s industrial revolution. And undoing this law won’t change the industry’s fate. That’s because the biggest coal fired utilities — American Electric Power, Southern Co. and Duke Energy — are ditching their older coal plants and they are not building new ones. Instead, they are switching to natural gas and renewables. Nationally, 300 coal plants have been shuttered since 2008 and more of them are scheduled to close.

While coal will remain relevant, it will never resume its place atop America’s energy throne. The sector has every right to fight for its cause. But coal-heavy regions are nevertheless duty-bound to diversify — to weatherproof their economies and to give their citizens brighter opportunities.